Milan road blocks planning commission’s Vineyard Square legal questions

By Valerie Cury

On Jan. 4, while working on updating the zoning ordinance, the Purcellville Planning Commission said they have asked several times for legal opinions on three items. The commission has asked, through staff, for the town attorney to render the legal status of the Vineyard Square project, “and we have not heard a response on that,” said Planning Commission Chair Nan Forbes. “We requested that the town attorney review the procedures followed by the county for Catoctin Meadows Lot 74, and render an opinion if all the proper steps were taken and in the proper order, and we have not heard a response on that.” 

A residence located on Lot 74 of the Catoctin Meadows Homeowners Association Subdivision, purchased by the Loudoun County Board of Supervisors, was extinguished by then Zoning Administrator Don Dooley on July 12, 2022. Dooley who was also the Planning and Economic Development Director at the time, extinguished Lot 74 with his signature on a plat titled dedication of right of way. 

County Administrator Tim Hemstreet signed the deed of dedication to extinguish the lot on the same day. This was done without any notification, discussion or public hearings both at the Planning Commission and Town Council level. It was only discovered when citizens looked at a county map and could no longer find Lot 74 in the county records. Dooley resigned in December 2022.

The planning commission also requested a legal opinion on non-conforming lots – generally 25 ft. wide sliver lots – “and we haven’t heard a response on that,” said Forbes.

Planning Manager Boyd Lawrence informed the planning commission that the department “will not” forward any requests to the town attorney on Vineyard Square because the town staff believes that nothing has changed based upon the previous decision, and all permits are extended through 2025.

Lawrence said he was also informed by the town manager that requests for legal opinions from the planning commission have to go through the mayor for permission because there is “an expense to get the service.” 

As of the end of December 2023 the legal department spending was at 43.4 percent of its budget.

Vice-Chair Ed Neham said he would like to know if the developers of Vineyard Square are still required to do all the things they were required to do before. “Are they vested? Did they spend the money they were supposed to spend? Did they get the permits and permissions they were supposed to get? Or will this be dragged out ad infinitum?”

Forbes added, “The reason we wanted to get further input from the town attorney is because there is a certain degree of ambiguity in the language of the code section 15.2-2209.1:1. It addresses the issue of the extension.”

“What it says is not withstanding any time limits for validity set forth … any subdivision plat valid under 15.22260 and outstanding as of July 1,2020 and any recorded plat or site plan valid and outstanding shall remain valid until July 1, 2025 or any such later date under local law.

“Then it goes on to say that not withstanding any other provision of this chapter … any deadline in the exception permit or in the zoning ordinance that requires the land owner or developer to commence the project or incur significant expenses related to improvements for the project within a certain time is extended until July 1 [2025].

“So the issue,” asked Forbes, “is what constitutes commencing the project? What is the definition of incurring significant expenses? And that has not been ascertained. The statute requires that – that be interpreted.”

Forbes continued, “What milestone to the town explicitly or implicitly required the developer to commence the project? What constitutes commencement? Did the project meet all its necessary deadlines prior to July 1 [2020]?

“What are the significant expenses? How has that determination been made?

Forbes said that those questions have not been addressed in the former town attorney’s letter.

“Those are the questions that need to be addressed with the town attorney. It’s not as simple as ‘Oh we have a letter from Ms. Hankins [the town’s former attorney].’ 

“It is not as simple as everything is extended to July 1, 2025. We are asking that those questions be addressed by the town attorney because they require an interpretation,” said Forbes.

“We are going through channels so we are conveying to you in this meeting that these are questions that we have had.”

Forbes said that the owner of Vineyard Square came to both the council and the planning commission with another plan [Plan B]. “So there are legal questions that arrive out of that. If there’s an intention to pursue a Plan B for the development of the property does the process start over?”

The Chapman’s are floating the idea of reducing the 40 condos to 36, and separating the project into numerous large buildings.

“Do the plans run concurrently? Do we assume that approval for Plan A also applies to plan B even though it’s a different plan? There are a lot of moving parts with this.”

Staff said if the Chapman Vineyard Square project were to change, the developers would have to submit a new plan for approval and go through the process.

Forbes said that an alternate plan raises a whole series of questions. “I think there are legitimate legal questions that are out there that need to be addressed and they are not addressed particularly if Plan B is being floated.”

Neham said a process has been outlined for the commission to follow and asked staff to forward the planning commission’s request to the mayor.